Important Change to the Rules for Permanent Alimony in Florida

Florida’s alimony statute, F.S. § 61.08, has gone through some significant changes over the past two years. There are rules now which help spell out what are “long-term”, “short-term” and “moderate-term” marriages – see F.S. 61.08(4). The Florida legislature defined a new kind of alimony – “durational alimony”, which is something in between permanent and “bridge-the-gap” alimony, and can have a duration up to the length of the marriage – e.g. a maximum term for durational alimony of 10 years, following a 10 year marriage.

One of the most significant changes in the statute is an addition to the permanent alimony section, F.S. 61.08(8): “In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.” Before the changes to the alimony statute, and before the recent change adding this sentence, a conventional wisdom was that for a long-term marriage that was at least some degree of a presumption in favor of an award of permanent alimony. This new sentence in section 61.08(8), I believe, pretty clearly changes that calculation.

Spouses will still have at their disposal all of the reasons and arguments that have supported requests for permanent alimony in the past, and presumably Judges in the past didn’t award permanent alimony if they believed there was no need for it, because other forms of alimony could adequately provide for the recipient spouse. Attorneys and spouses requesting permanent alimony in the past have argued that it was needed because other forms of alimony were not adequate; and attorneys or spouses advocating against permanent alimony could always argue that It was not appropriate because some other award was fair and reasonable. Similarly, many people argue, with plenty of good reasons, that presumptions don’t decide cases, i.e. a Judge will look at a case and attempt to do what is fair – that is, make a decision, rather than decide a case based on a presumption. But presumptions or burdens of proof do decide some cases. In a close case, a bit of a presumption can change the thinking in the courtroom or Judges Chambers (where family law cases in most counties are heard).

Perhaps an even more significant effect of the new language in the permanent alimony section, is on negotiations between the parties or attorneys, or in mediation. The requirement that the Judge make an “affirmative” finding that no other form of alimony is appropriate, can change the calculations in a negotiation. In general, it seems to me, at least as I’m writing this, as if there is a bit of pressure coming to play against awards of permanent alimony in Florida, but alimony, as most people acknowledge, is one of the more subjective issues in family law.

It may have something to do with the state of the economy. I’ve heard some personal injury attorneys mention that juries are sometimes less inclined to award large judgments in bad economic times, maybe because it seems like a windfall. Perhaps when there is risk, uncertainty or hardship in the economy, it seems tough to award permanent alimony, unless it’s a situation where it is clear there is no other other available, adequate form of support. However, as there was before the changes to the statute, there is always “the other side” — when spouses have been married a long-time, one spouse is doing well, and it looks like the other spouse can never earn at the same level or maintain the marital standard of living, then permanent alimony can or will look like the only form of support that is fair or reasonable. Incidentally, when the amount of alimony is in dispute, there’s a pretty good chance it’s going to one of the final issues everyone is going back and forth on, as a mediation or an attempt to settle a case comes to close.